Don’t wait to check the batteries . . .

As first seen in Building Excellence January 2015.

We’re supposed to change the batteries in our smoke detectors when we change the clocks. It’s a nice way to remember. You still have a couple of months for that (it’s in March, for you Hoosiers who still aren’t used to DST). But I was recently thinking about when we remember to focus on safety. Some folks talk – and walk – safety every day. Some say it, and mean well, but have probably left the programs on the shelf for a little too long. Some don’t think much about it at all, at least until it’s too late. Over the years I have taken more calls than I want to remember from good people who have had bad things happen to their employees and co-workers on the job. That’s a tough conversation, but it’s unimaginably harder for the family that is not getting mom or dad back at the end of the day.

Last year alone 4,405 workers died on the job in America. On average, that’s 85 deaths a week and more than 12 people who died at work every day. In Indiana we are getting better – with the third lowest number of fatalities on record, at 123. But, that’s still 123 too many Hoosier co-workers lost, too many friends gone, and too many families impacted due to accidents at work.

Now, I'm going to end this article by talking about OSHA's new reporting requirements for serious injuries and deaths, but I want to start with something far more important – how to prevent them in the first place.

Nearly all workplace tragedies are preventable, and our collective mindset should be that every workplace accident is preventable. Keeping safety top-of-mind with strong practices and regular training is the best way to prevent injuries and deaths. Notice I didn’t say strong policies. Safety policies are a necessary component of a robust safety program, but words on a page don't keep people from getting hurt. Talk about it every day. Train on it habitually. Only a systematic commitment to practicing safety will give your employees the best chance of going home in the same condition they clocked in.

Many fatalities occur because of shortcuts, inattention, or complacency – i.e., not using fall protection correctly because it’s uncomfortable or inconvenient (or worse, not issuing or using it at all); not hearing backup alarms because they are everywhere; not being specific about or following lockout/tagout procedures; working fast instead of working safe.

Just look at OSHA’s 2013 “Fatal Four” for Construction as proof – (1) Falls (294 deaths; 36.9%); (2) struck by object (82 deaths; 10.3%); electrocutions (71 deaths; 8.9%); and caught-in/between (21 deaths; 2.6%). If we could have prevented fatalities for only these four issues, we could have saved 468 lives last year.

Just because you work in a hazardous industry does not mean that it has to be dangerous for employees. Electricity is hazardous. But lockout/tagout is all about the control of hazardous energy. You often work at heights, but there is a reason for fall protection, and proper scaffold erection, and trench boxes. We control hazards through safe practices. Think about how your procedures are or could be bypassed (intentionally or otherwise), and then prevent it. Procedures should be easy to understand. Use pictures in your written policies. Make it specific to the task. Monitor safety as hard or harder than you do productivity. I’d rather defend a grievance alleging unjust discipline than a case for wrongful death.

You don’t have to – and probably shouldn’t – try to do it by yourself. The internet is great for grumpy cats and double rainbows, but it’s probably not the best starting point for building a safety program. Hire a professional. That does not mean making your HR person the new "Safety Director." Hire a real, honest-to-goodness safety professional. You can do this on a full-time, part-time, or consulting basis. Have a third-party conduct a self-audit. Under Indiana law (I.C. 22-8-1.1-24.7) the contents of a safety audit prepared by a third-party (or an employee whose principal responsibilities include safety and health compliance) are inadmissible against you if you make a good-faith and substantial effort to correct every hazard noted. If you are unable or unwilling to correct all hazards, or if you do this in the wrong way, it will be discoverable and can be used against you. Bottom line – hire a professional. Consult legal counsel. It's worth it.

Talk (and listen) to your employees. If you have ever been through a safety investigation, you know that one of the first things that will happen is an interview of your employees. So many times, I have been through investigations where the employer has all the right policies in place, and may even do training, but employees still don't understand (and tell IOSHA they don’t understand) what they were supposed to do. Do training, absolutely, but also do testing to ensure that it sticks. Talk to people to make sure they understand how to do their job safely. Document your training, the testing, and those conversations. Use sign-in sheets for safety talks. Schedule and document things like toolbox talks. These are preventative and protective measures. You can’t always prevent someone from intentionally doing the wrong thing, but you should be able to document the fact that they were taught, and understood, how to do the right thing.

For those of you who already have a good handle on safety, one of my partners is fond of this piece of particularly sage business advice from a restaurant client: When asked the secret to his success, the client said, “If you clean when it’s already clean, it never gets dirty.” It’s nice to hear that from your favorite kitchen, but it also applies to safety programs. They don’t run themselves. It’s a daily effort that requires constant attention. Keep up the good work, but understand that complacency is the enemy of safety. Just because it has never happened does not mean that it can’t.

For those of you who may be feeling a little behind on safety, there’s the old saw about planting a tree – “The best time to plant a tree is 20 years ago. The second best time is now.” Safety is kind of like that too. If you haven’t been doing it or you haven’t been doing it right, you can (and absolutely should) still start today. Don’t wait until one of your people is hurt, or worse is killed because you have an inadequate safety program in place.

Now, for the legal part of all of this, federal OSHA has recently enacted new requirements for reporting serious injuries and deaths. Previously, employers were required to report (within 8 hours) all fatalities and the hospitalization of three or more employees. Under the new reporting requirements, employers are required to report the following:

1. all work-related fatalities;
2. all work-related inpatient hospitalizations of one or more employees;
3. all work-related amputations (including fingertips); and
4. all work-related losses of an eye.

Fatalities must be reported within 8 hours. Inpatient hospitalizations, amputations, or eye loss must be reported within 24 hours. If a fatality occurs within 30 days of the incident, the report must be made within 8 hours of learning of the death. If a hospitalization, amputation, or eye loss occurs within 24 hours of the incident, the report must be made within 24 hours thereafter. On a federal level, these rules took effect January 1, 2015. Indiana generally adopts federal guidance 60 days after implementation. Accordingly, IOSHA will begin enforcing the new requirements on or after March 1, 2015.

I sincerely hope that you never have to make a report for any of these issues. But, because I have been granted this platform, let me ask that you please, please think about safety today. Review your policies. Do some training. Hire a professional. Conduct an audit. Talk to your employees. Check the batteries in your safety program. Please don't wait until the house is on fire to call.

Ryan Poor is a Partner in Ice Miller's Labor and Employment Practice Group. He assists clients with safety and health compliance and litigation, including representation with OSHA and IOSHA matters. He helps employers solve tough workplace problems, develop positive employee relations, deal with unexpected crises and prevent unnecessary litigation. He also guides employers through the minefields of government investigations and defends them when they’ve been sued or received administrative charges. He works directly with human resources and safety professionals, in-house counsel and corporate officers to build better workplaces. He can be reached at ryan.poor@icemiller.com.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.